DUNGAN et al.
BRANDENBERG et al
Reversed and remanded with directions.
Rosenberg & LaVetter and Joseph B. Judge, all of Tucson, for appellants.
Darnell, Robertson & Holesapple, of Tucson, for appellees.
Justice A. T. La Prade, being disqualified, the Honorable Benjamin Blake, Judge of the Superior Court of Graham County, was called to sit in his stead.
[72 Ariz. 48] This case was brought by plaintiffs-appellants George and Margaret Dungan, husband and wife, against the Arizona Ice and Cold Storage Company, a corporation, and Philip Brandenberg, an iceman, hereinafter referred to as the "company" and the "driver" respectively. Plaintiffs alleged that the driver was the servant of the company, and that he, while in the scope of his employment, did negligently operate an ice truck and did thereby cause the death of plaintiffs' four-year old son, Jackie Dungan.
The facts as disclosed by the record show that on September 18, 1947, the
driver made one of his regular deliveries of ice to the home of the plaintiffs. The driver parked the ice truck about thirty feet from the front of plaintiffs' house in the yard abutting it. Having made the [72 Ariz. 49] delivery he emerged from the house, entered the truck and commenced to back it up. The driver's testimony is conflicting as to just what observations he made relative to the whereabouts of the child before backing up the truck. When the truck had gone backwards about ten feet the driver heard his helper, one Fimbres who was then some distance away, holler, "Stop!" At the same instant he heard the child scream. The driver stopped the truck and retrieved the crushed body of the child which was lying in a prone position underneath the truck between the front and rear wheels. A short time thereafter the child died of his injuries.
The matter was tried before a jury. The trial court, at the close of plaintiffs' case, directed a verdict in favor of the company on the ground that plaintiffs had failed to show that the driver was a servant of said company at the time of the accident. At the close of the whole case, the trial court granted a motion for a directed verdict in favor of the driver on the ground that plaintiffs had failed to prove the negligence on the part of the driver in the death of the child. Plaintiffs' motion for a new trial was denied and they appeal from that order.
Plaintiffs' first assignment of error is that the trial court erred in directing a verdict in favor of the company. Plaintiffs contend initially that the company was the owner of the ice truck in question and then relies on the cases of Baker v. Maseeh, 20 Ariz. 201, 179 P. 53, 55, and Consolidated Motors, Inc., v. Ketcham, 49 Ariz. 295, 66 P.2d 246, which he asserts raise the presumption that the driver was the company's servant. The first cited case unequivocally holds that: "* * * proof of ownership is prima facie evidence that the driver of a vehicle causing damage by its negligent operation is the servant or agent of the owner and using the vehicle in the business of the owner." The latter case confirms the former. The evidence as to the ownership of the truck is in conflict. The record shows that the truck was registered with the Department of Motor Vehicles in the name of the company and that the truck license plates had been issued to it; the company was designated as the owner on the certificate of title. The driver testified that prior to the accident he had purchased the truck from the company, had given it a down payment thereon, and had executed a mortgage on the truck to the company for the balance of the purchase price. If the company were the owner, plaintiffs would be entitled to the presumption set out in the cited case. Because the evidence was in conflict and since the only evidence disputing ownership in the company was the testimony of the driver, an interested party, plaintiffs were entitled to have the jury consider [72 Ariz. 50] whether or not the company was the actual owner and thereby determine plaintiffs' right to the presumption.
It must be further noted at this point that the plaintiffs' case does not necessarily hinge on the ownership of the truck. Even though the company was the owner of the truck it does not necessarily follow that the driver was its servant, and conversely, it is entirely possible that the driver may have been the servant of the company at the time of the accident even though he himself, and not the company, was the owner. While it is true that in that event plaintiff would not have the benefit of the aforementioned presumption, still the question of master-servant relationship remains. Once again the evidence is in conflict. The driver's name and the company's telephone number appeared on the side of the truck. According to the contract between the driver and the company, the former could sell ice only in a territory defined and limited by the latter. The driver ...